All-Star Panel: The politics of terror

This is a rush transcript from "Special Report," January 8, 2015. This copy may not be in its final form and may be updated.

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL, R-KY, SENATE MINORITY LEADER: He's in the process of trying to close Guantanamo, which is the perfect place for foreign terrorists who are captured overseas. He wants to mainstream them, frequently, into a U.S. article three court, which means they are going to get a lawyer and shut up.

I mean, what you want the most from a foreign terrorist trying to kill us is what else do they know? And the president's policy is basically twofold, one to kill them, which may be entirely appropriate on a lot of instances but you're not going to learn anything after you kill them, or put them in a U.S. court -- these are foreigners not entitled to the protections of the constitution -- put them in a U.S. court where they are told to shut up.

(END VIDEO CLIP)

BRET BAIER, ANCHOR: Senate Majority Leader Mitch McConnell talking about the Obama policy on getting a detainee and what to do about it intelligence-wise. We're back with the panel. Judge, you have been for closing Guantanamo Bay.

NAPOLITANO: Yes.

BAIER: What about this argument?

JUDGE ANDREW NAPOLITANO, FOX NEWS SENIOR JUDICIAL ANALYST: Well, I respect Senator McConnell. I understand his motivations and, candidly, I am very happy that he and not Harry Reid is the majority leader in the Senate. However, he is incorrect to say that the Constitution only applies to Americans. It applies to everybody that's in American custody anywhere. That's not me. That's the Supreme Court. And the five times the people in Guantanamo challenged their incarceration before the Supreme Court of the United States, all five times the Supreme Court ruled in favor of some form of due process. Doesn't have to be a jury trial in lower Manhattan, but it has to be a form of due process.

The American government has not captured a, quote, "terrorist on the battlefield," closed quote since 2008. So I really don't know the people of whom Senator McConnell is speaking.

BAIER: That's because, judge, they are killing them.

NAPOLITANO: Correct.

BAIER: They are dropping bombs on them. The intelligence value --

NAPOLITANO: Correct. And that is was the reason we have not had another 9/11 here because the CIA and the American military have disseminated the leadership of these groups overseas.

BAIER: OK. Amy?

AMY WALTER, COOK POLITICAL REPORT: Which part?

(LAUGHTER)

WALTER: Listen, here is part of the difficulty here in terms of walking this line for the president and also any other politician, which is if the argument is keeping Guantanamo open is helping to radicalize and foment this anger at the U.S., closing it isn't necessarily going to all of a sudden make that dissipate, right? There is still going to be a frustration there. Apparently, these brothers, what got them radicalized was the Iraq War, was Abu Ghraib. That's not going away. That's still part of the reality.

But I do think if we are just looking at this from a pure political standpoint, I think probably more people would argue that American public would argue that having Guantanamo open and put terrorists in Guantanamo is something they still support, but I don't know that it's strongly supported.

BAIER: Isn't it, George, more about this whole radical Islamic extremist movement that is beyond any one thing like Gitmo or anything the U.S. is doing and they are still going to come after us?

GEORGE WILL, SYNDICATED COLUMNIST: The World Trade Center was attacked not once, but twice before Gitmo became a camp for these people. The USS Cole was attacked before Gitmo. The whole point is they are radical Islamists, they were before and they were after and we have a choice of capturing and killing them and deterring them.

We can't, however, say looking forward to when we get hit again that that means that our anti-terror policy is a failure. We don't say the policing of a city is a failure if there are still murders and burglaries and assaults. There is only so much you can do in a free society with reasonably porous borders to prevent any eruption of this. Just --

WALTER: Well, and what happens -- if we talk about homegrown terrorism, are we going to put those folks at Guantanamo?

I mean that would not --

NAPOLITANO: -- that would be almost impossible under domestic law. It would be such serious violation of the Constitution the presidential oath and federal law.

BAIER: We will continue to have these conversations about civil liberties and affecting our country, I'm sure, the Judge especially. That's it for the panel, but stay tuned to see what happens when you combine college football and puppies.

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